People v Rosa
Attorneys and Parties
Brief Summary
Criminal law—constitutionality of New York firearms possession statutes after New York State Rifle & Pistol Assn., Inc. v. Bruen and discretionary waiver of mandatory surcharges for defendants under 21 under CPL 420.35(2-a) [permits waiver of surcharges and fees for individuals less than 21 years old at the time of the crime]. Statutes at issue: Penal Law § 265.03(3) [criminal possession of a weapon in the second degree for possessing a loaded firearm outside the home or place of business], Penal Law § 265.01-b(1) [criminal possession of a firearm], and Penal Law § 265.01(1) [criminal possession of a weapon in the fourth degree].
The Supreme Court, Kings County accepted the defendant’s guilty plea to attempted criminal possession of a weapon in the second degree and imposed sentence, including a mandatory surcharge and fees.
Only the portion of the sentence imposing the mandatory surcharge and fees was vacated.
The Bruen-based constitutional challenge was unpreserved because it was not raised in the trial court and, in any event, Bruen does not invalidate New York’s criminal possession statutes. The surcharge and fees were vacated in the interest of justice because CPL 420.35(2-a) allows waiver for defendants under 21 at the time of the offense and the People consented.
Background
Police found the defendant in possession of a loaded firearm outside his home or place of business. He was indicted for criminal possession of a weapon in the second degree (Penal Law § 265.03[3]), criminal possession of a firearm (Penal Law § 265.01-b[1]), and criminal possession of a weapon in the fourth degree (Penal Law § 265.01[1]). He pleaded guilty to attempted criminal possession of a weapon in the second degree.
Lower Court Decision
Judgment of conviction entered upon a guilty plea to attempted criminal possession of a weapon in the second degree, with sentence including a mandatory surcharge and fees.
Appellate Division Reversal
Modified, as a matter of discretion in the interest of justice, to vacate the mandatory surcharge and fees under CPL 420.35(2-a), with the People’s consent; otherwise affirmed. The court held the Bruen challenge unpreserved and, alternatively, without merit because Bruen did not affect the constitutionality of New York’s criminal possession statutes.
Legal Significance
Confirms that Bruen does not undermine New York’s statutory offenses for criminal possession of firearms and weapons. Reinforces preservation requirements for constitutional challenges raised on appeal after a guilty plea. Clarifies that appellate courts may exercise interest-of-justice authority to waive mandatory surcharges for defendants under 21 pursuant to CPL 420.35(2-a), particularly where the People consent.
On direct appeal from a guilty plea, Bruen-based challenges to New York’s weapons possession statutes fail absent preservation and on the merits; however, defendants under 21 may obtain vacatur of mandatory surcharges and fees under CPL 420.35(2-a).